Farley-Harvey Co. v. Madden

• Decision Date: 05 March 1927
• Citation: 105 Conn. 679,136 A. 586
• Court: Connecticut Supreme Court
• Parties: FARLEY-HARVEY CO. v. MADDEN.

136 A. 586

105 Conn. 679

FARLEY-HARVEY CO. v. MADDEN.

Supreme Court of Errors of Connecticut.

March 5, 1927

Appeal from Superior Court, New Haven County; Edwin C. Dickenson and L. P. Waldo Marvin, Judges.

Action by the Farley-Harvey Company, a creditor, against William J Madden, its debtor, for damages for concealing or withholding property from attachment. A plea in abatement was sustained and judgment was rendered abating the writ and dismissing the action. From the decision sustaining the plea in abatement plaintiff appeals. Error, and cause remanded.

Charles S. Hamilton, of New Haven, for appellant.

John F. McDonough, of Waterbury, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and WOLFE, JJ.

MALTBIE, J.

This action was brought to the superior court in New Haven county, under the provisions of section 6142 of the General Statutes. The complaint alleges, with an entirely unnecessary division into counts, an indebtedness of the defendant to the plaintiff, a demand for payment and a refusal, and then the defendant's concealment or removal of his personal property, and his refusal to disclose his rights of action, in order to prevent their being taken by legal process. The writ, as authorized by the statute, directed an attachment of the body of the defendant, if attachable property could not be found. Upon the return of the case to court, the defendant pleaded in abatement that there was then pending in the district court for the District of Waterbury an action between the same parties and for the same cause of action. Upon the hearing upon the plea, the file of the action in the district court was placed in evidence, and this disclosed merely a writ and a complaint upon the common counts, no bill of particulars or substitute complaint having been filed. The court inquired of counsel then representing the defendant, not the counsel appearing for him before us, if the parties in that action were the same as those involved in this, and if the cause of action was the same, and counsel stated that they were. Thereupon the court sustained the plea.

An action brought under section 6142 of necessity alleges the existence of a debt, but it is very different from a simple action to collect that debt. Its essence is the wrongful concealment or removal of his personal property by a debtor, so that it may not be subjected to the just demands of his creditor; it is a statutory action, closely akin to a common-law action of fraud, and is much more analogous to one lying in tort than to one in contract. Atwater v. Slepcow, 74 Conn. 671, 673, 51 A. 1063; Allen v. Lyness, 81 Conn. 626, 631, 71 A. 936. Its effectiveness must almost wholly depend upon the right of attachment of the body given by the statute, because it presupposes an inability to find property which may be attached. In Wildman v. Wildman, 70 Conn. 700, 710, 41 A. 1, 3, we point out that, although the ingredients going to make up two statements of fact claimed to constitute separate causes of action may differ, yet:

" If each showed that the plaintiff was the owner of the same right, that the defendant had committed the same violation of that right, and that the plaintiff was entitled to the same relief, they would each show the same cause of action and not a different one."

It is obvious that the plaintiff in an action under the statute is not asserting the same right or complaining of the same violation of that right as he is when he brings suit simply for the collection of a debt, nor is he entitled to the same relief, using that expression to include the means he may take to obtain payment for the damages he has suffered. A cause of action under the statute involves, in part, the same issues, but it is not the same as one brought simply for the collection of the debt.

But it is argued that the plaintiff could obtain all the relief to which it is entitled in the action in the district court. In Welles v. Rhodes, 59 Conn. 498, 503, 22 A. 286, we say:

" It is now an established principle in our law of civil procedure that two suits shall not be brought for the determination of matters in controversy between the same parties, whether relating to legal or equitable rights, or to both, when such determination can be had as effectually and properly in one suit."

We there point out that if there is already pending an action in which the right claimed can be determined as effectually and properly as it can be in the second suit, the latter should be dismissed. This rule is, of course, but an...